1. ' NADEEM AZHAR SIDDIQI, J.---This Revision is directed against impugned order, dated 16-5-2005 passed by learned III Additional District Judge, Sukkur, whereby Review Application, dated 28-4- 2001 filed by the applicant for review of the judgment, dated 17-4-2001 in C.M.A. No,6 of 2000 has been dismissed and by separate order, dated 16-5-2005 the Application under Order VI, Rule 17, C.P.C. Has been declined, hence he filed the aforesaid Revision before this Court.
2. ' The facts of the revision are that the applicant is owner of 1200 Sq.Ft out of C.S. No,131/C situated at Kandhra Town Taluka Rohri District Sukkur upon which two shops were constructed and some space. Was left open. Previously the applicant had filed Civil Revision No,89 of 2000 and the same wns allowed and the matter was remanded to the learned Appellate Court with direction to decide the Review Application afresh after hearing the parties in accordance with law. After remand the applicant filed an application under order VI, rule 17, C.P.C. Which was dismissed.
3. ' Mr. Shaikh has contended that the appellate Court should first decide the Miscellaneous Application under 0. VI, Rule 17, C.P.C. And then to decide the Review Application and by not doing so committed an error which is apparent on the face of the record. He further submits that the appellate Court while passing judgment, dated 17-4-2001 has not touched the merits of the Appeal and while passing order on Application under 0. XXIII, Rule 1, C.P.C. Dismissed the appeal and while doing so committed a mistake which is apparent on record. He further submits that the Applicant/Plaintiff can abandon his claim to bring the case within the jurisdiction of the Court and referred to the provision of Order XXIII, Rule 1, C.P.C. He further submits that the Appellate Court has committed an error by dismissing the application under O.XXIII, Rule 1, C.P.C. On the technical ground that the application of withdrawal of part of the claim is not clear and separable. He prayed that both the orders may be set aside.
4. ' Learned counsel for the respondents has submitted that a review can only be maintained if it is shown that the Court has committed an error or mistake which is apparent on the face of the record and shouldnot require any inquiry to establish it. He further submits that the Appellate Court has not committed any mistake or error of law and fact in dismissing the Application under 0. XXIII Rule 1 C.P.C. And further dismissing the appeal. He further submits that the scope of the Review is different from the scope of appeal. Regarding application under 0. VI Rule 17, C.P.C. He states that the appeal or suit was not pending at the time of filing of the application and no amendment can be allowed in a pleading/proceeding, which is not pending. Learned counsel has relied upon the following reported cases:--
(1) Mian Rafiq Saigal v. BCCI and others (PLD 1997 SC 865)
(2) Abdul Rauf v. Tutub Khan (2006 SCMR 157). He prays for dismissal of Revision.
5. ' I have heard learned counsel for the parties and perused the record made available before me.
6. ' The trial Court has returned the plaint vide order, dated 29-2-2000 for want of jurisdiction on the ground that applicant in his cross-examination has admitted value of the suit property is more than six lacs. The said order was challenged in CMA No, 6 of 2000 which was dismissed vide order, dated 17-4-2001. The order of Appellate Court was challenged by way of Review Application, dated 28-4-2001 which was dismissed vide order, dated 29-9-2001. This order was challenged in Civil Revision No,89 of 2001 which was allowed vide order, dated 3-2-2005 and the case was remanded to the Appellate Court for deciding the Review Application afresh after hearing the parties. The learned Appellate Court after hearing the parties again dismissed the Review Application vide order, dated 16-5-2005.
7. ' While going through the order, dated 17-4-2001 by which the appeal was dismissed I have noticed that the Appellate Court has not at all discussed the merits of the, appeal and while dismissing the application under Order XXIII, Rule 1, C.P.C. Dismissed the appeal merely observing as under:- "As observed above there appears no illegality with in the order of trial Court, therefore the same is maintained and this appeal is dismissed with no order as to cost."
8. ' From the perusal of the order it is apparent that there was no observation or discussion in the order regarding the return of the plaint. From the order it is apparent that the parties were not heard on the merits of the Appeal before dismissing the appeal.- Passing of order without giving opportunity of hearing to the parties is an error apparent on the face of the record. The Appellate Court while dismissing the Appeal has overlooked/ignored the provision of Order XLI Rule 31,C.P.C.
9. And neither framed point for determination nor given any finding in this regard. Judgment given by Appellate Court without adverting to specific provision of law amounts to committing an error which is apparent on the face of the record for which no detail inquiry is required.
10. ' Regarding the Application under Order XXIII, Rule 3, C.P.C. The Appellate Court again committed an error in not adverting to therovision of Order XXIII, Rule 1, C.P.C. The power under Order XXIII, Rule 1, and C.P.C. Can be exercised by the Appellate Court. Order II, Rule 2. Sub-Clause (2) provides that the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. The' Applicant after abandoning part of claim in the suit has every right to seek amendment in pleadings and as the power to allow amendment is discretionary with the Court and is to be exercised in accordance with the judicial principle to avoid multiplicity of suits. The amendment can also be allowed to correct faulty drafting. The only restraint is that the amendment should not change or alter the character of the suit. In all fairness the learned appellate Court should allow application under 0. XXIII Rule 1, C.P.C. And remand the case to the trial Court for further proceedings.
11. ' Regarding application under 0. VI, Rule 17, C.P.C. Found force in the arguments of, the learned counsel for the respondent that no amendment can be made in the pleadings of a disposed of suit. The date E on which the amendment application was filed neither the suit was pending before any Court nor appeal was pending as such application under 0. VI, Rule 17, C.P.C. Cannot be allowed and the application under 0. VI, Rule 17, C.P.C. Was rightly dismissed.
12. ' In view of the above position the Revision Application is allowed and the order, dated 16-5-2005 passed by the Appellate Court dismissing the review application is set aside and in consequences thereof the review application, dated 28-4-2001 is accepted and the order, dated 17-4-2001 is set aside and the appellate Court is directed to decide the Appeal afresh after giving proper opportunity of hearing to the parties F the Appellate Court first decide the application under 0. XXIII, Rule 1, C.P.C. And then proceed with the main appeal.
13. ' This exercise is to be completed within 2 months from the date of receipt of this order. The parties or their counsel will appear before the Appellate Court on 5-4-2007 and no Court motion notice will be issued.